The Human Rights Committee, established under
article 28 of the International Covenant on Civil and Political Rights,

Meeting on 24 July 2008,

Having concluded its consideration of communication No. 1456/2006, submitted
to the Human Rights Committee on behalf of X under the Optional Protocol to
the International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by
the author of the communication and the State party,

Adopts the following:

VIEWS UNDER ARTICLE 5, PARAGRAPH 4, OF THE OPTIONAL PROTOCOL

1.1 The author of the communication, dated 14 February 2006, is X, a Spanish
national acting on her own behalf and on behalf of her daughter, Y, born in
1994. She claims that her daughter is a victim of violations by Spain of
article 14, paragraph 1, and of article 24, paragraph 1, read in conjunction
with article 17, of the Covenant. The Optional Protocol entered into force
for the State party on 25 April 1985. The author is represented by counsel,
Mr. José Luís Mazón Costa.

1.2 On 3 May 2006, the Committee, acting through its Special Rapporteur on
new communications, decided to consider the admissibility and merits of the
case jointly.

FACTUAL BACKGROUND

2.1 The author, a bank employee resident in Murcia who is legally separated
from Z, filed a criminal complaint against the latter on 14 November 1997
for alleged sexual assault on their daughter, who was three years old at the
material time. The complaint was based on the child's behaviour and comments
after visits to her father, a child psychiatrist's report and a written
testimonial from the child's day-care centre.

2.2 By a decision of 14 November 1997, Murcia Investigating Court No. 5
agreed to institute preliminary proceedings on the basis of the author's
complaint. By a decision of 18 November 1997, the same Court agreed on a
provisional suspension of the visiting arrangements between the father and
daughter. As a result of the preliminary proceedings on 19 October 1998, the
Court ordered the opening of oral proceedings and transferred the records to
the Murcia Provincial Court after the Public Prosecutor's Office
characterized the facts as constituting a continuing offence of sexual abuse
of minors, pursuant to articles 74, 181.1, 2 and 3, and 192.2 of the Spanish
Criminal Code. The private indictment characterized the facts as an
attempted sexual assault.

2.3 On 21 May 2002, the Provincial Court acquitted Z of the alleged offences
of sexual abuse and assault. The text of the judgement presents the proven
facts as follows:

That, following their legal separation in early 1997, the parties were
continuously embroiled in legal disputes over the visiting arrangements for
their daughter, with some 20 criminal charges being filed.

That between late September and October 1997, the teaching staff at the
kindergarten where the author's daughter was enrolled noticed a change in
the minor's behaviour following visits to her father. She tended to be
irritable, was abnormally tired and sleepy, and referred repeatedly to the
"little tortoise" game, explaining that it involved her father having a
little tortoise beneath his trousers and underpants which she caught and
kissed. She had occasionally drawn the tortoise in the form of a penis.

That in November 1997 the person in charge of the kindergarten decided to
bring the foregoing facts to the author's attention. The author raised the
matter with her psychiatrist, who referred her to a gynaecologist. The
gynaecologist concluded that the child was anatomically normal but that the
vaginal entrance seemed to be enlarged. She drew attention to the child's
passivity during the examination, which was unusual for a child of that age.
The mother subsequently took her daughter to a child psychiatrist, who
issued a preliminary report concluding that sexual abuse had taken place,
consisting, at a minimum, of exposure of an erect penis that the child had
manipulated with masturbatory movements and had kissed in the course of
erotic games.

2.4 The discussion in the oral proceedings focused on the evidence adduced
in support of the charges, namely: (a) the report and video prepared by the
psychologist and social worker of the Family Court technical team; (b) the
report of the child psychologist who visited the minor; (c) the testimony of
the kindergarten teachers; and (d) the report of the gynaecologist who
visited the minor. The Court, having examined each of these items, concluded
that the evidence they contained failed "to provide solid grounds for the
conclusion that abuse actually occurred. The child's age and the contextual
background, involving a confrontational marriage break-up, made it extremely
difficult to establish what had occurred. It would therefore have been
advisable to base the case on a rigorous and meticulous code of procedure
conducted by specialists, with judicial intervention ab initio, so as to
obtain a statement by the child based on adequate safeguards, and carefully
recorded by audio-visual media to facilitate its reproduction whenever
necessary and, in particular, for the trial (...). As such action had not
been taken, any evidence that might have existed had been effectively lost.
Furthermore, the father had consistently denied the facts, sticking to an
account that was consistent, unchanging and basically watertight".[FN1]

2.5 The judgement of acquittal handed down by the Murcia Provincial Court
invalidated the decision by Murcia Investigating Court No. 5 of 18 November
1997 to suspend the visiting arrangements as a preventive measure. The
Provincial Court held that "although it could take steps, acting on article
158 of the Civil Code and, in general, on Act 1/96 Organizing the Legal
Protection of Minors, to restore and normalize relations between the father
and daughter - which have been seriously damaged, to the child's detriment -
in the Court's view, such measures should be ordered, at the earliest
opportunity, by the Family Court dealing with the parents' marriage
break-up, which is better equipped (psychosocial team) than this Court to
devise whatever arrangements its experts consider to be most fitting, the
basic aim being to serve the best interests of the child, and on the
understanding that the goal is not merely the resumption of contact and
visits but the restoration and strengthening of the bond between father and
child so necessary for the daughter's personal and emotional stability,
paying particular attention to those who might wish to obstruct that
process".[FN2]

2.6 The author filed an appeal with the Supreme Court for annulment
(casación) of the judgement of acquittal handed down by the Provincial
Court, citing an alleged violation of the right to effective legal
protection and the right not to be deprived of a defence, recognized in
article 24, paragraphs 1 and 2, of the Spanish Constitution by virtue of the
fact that the Provincial Court had no direct statement from the victim. The
author further alleged that the Court had erred in its evaluation of the
evidence provided by experts and witnesses. Lastly, she challenged the
failure to apply articles 181.1 and 192 of the Criminal Code, arguing that
the proven facts were subsumed in the offences characterized in those
articles.

2.7 On 23 June 2003 the Supreme Court dismissed the grounds for annulment,
ruling that the Provincial Court's reasoning in support of its judgement of
dismissal had been sound. It had explicitly addressed the evidence in its
possession, particularly the problem raised by the lack of direct viewing of
the alleged victim's statement, and had concluded that there was
insufficient evidence of the charges against the accused to undermine his
right to be presumed innocent. The Court also found that "the documentary
and witness evidence presented in the oral proceedings lacked probative
value, so that the Provincial Court's finding that there was sufficient
doubt concerning the facts to preclude the necessary conviction was
justified". Lastly, the Court considered that the description of the facts
in the Provincial Court's judgement did not warrant the subsumption of those
facts under the alleged offences inasmuch as the Court was unable to
conclude from the body of evidence that such abuse had actually occurred.

2.8 On 26 April 2004 the author filed an application for amparo (enforcement
of constitutional rights) with the Constitutional Court, invoking three
grounds: (a) lack of defence due to the invalidation of the prosecution's
main item of evidence, the video-recording of the minor's statement before
the Family Court's technical team, and the fact that it was impossible to
obtain a direct statement from the child during the proceedings; (b) the
manifest arbitrariness of the judgements at first and second instance in
terms of their evaluation of the evidence; and (c) violation of the minor's
right to privacy by the judgement of acquittal through its order for
immediate contact between the minor and her father.

2.9 By a judgement of 17 January 2005, the Constitutional Court dismissed
the application for amparo. With regard to the alleged violation of the
minor's right to privacy, the Court held that since the argument had not
been raised at the cassation stage it was inadmissible on account of the
subsidiary nature of the amparo application. With regard to the complaint of
lack of defence due to the invalidation of the prosecution's main item of
evidence, the Constitutional Court held that the Provincial Court had found
the evidence to be valid and had even described it as "a key piece of
evidence", so that the finding of invalidity did not refer to the evidence
as such, which had been admitted and presented to the court, but rather to
its purported aim, namely to serve as prosecution evidence of the guilt of
the accused, since it failed to meet the evidentiary standard required to
guarantee the credibility of the minor's testimony. Lastly, with regard to
the ground of lack of defence due to the arbitrariness of the evaluation of
evidence by the Provincial Court, the Constitutional Court held that the
amparo procedure was not the proper avenue for effecting a review of the
evaluation of the evidentiary material by the trial court unless the latter
had acted in a manner that was arbitrary or unreasonable. According to the
Constitutional Court, the Provisional Court had carefully evaluated each
item of expert or witness evidence presented during the oral proceedings and
had disqualified each item on grounds that could not on any account be
characterized as unreasonable or arbitrary.

THE COMPLAINT

3.1 The author claims that there was a denial of justice constituting a
violation of article 14, paragraph 1, because the trial courts invalidated
an item of evidence, the video-recording by the Family Court's technical
team, the nature of which was such that it could not have been submitted in
any other form owing to the very young age of the witness and the delay in
bringing the case to trial, which meant that the child no longer remembered
the facts. She submits that the judgements handed down by the Provincial
Court and the Supreme Court were inconsistent, since they maintained that
the facts of the case could not be considered credible unless they were
related by the minor herself during the proceedings, while acknowledging at
the same time that it was impossible to reproduce the statement owing to the
child's age and the time that had elapsed before the case came to trial.
According to the author, the preconstituted evidence consisting of a
video-recorded statement by the child that had been viewed during the
proceedings was the only possible means of reproducing the minor's
statements and should therefore have been recognized as a key item of
evidence. Yet the trial courts had invalidated the evidence, leaving the
plaintiff defenceless.

3.2 The author also claims that there was a denial of justice as a result of
the manifest arbitrariness of the judgements in terms of their evaluation of
the evidence. She contends that the courts resorted in their reasoning to
probatio diabolica, rendering proof impossible, since only a statement to
the court by the minor was deemed to constitute sufficient evidence for the
prosecution, although such evidence could not possibly be adduced.

3.3 Lastly, she maintains that the order by the Provincial Court to restore
contact between the minor and her father as a matter of urgency, reversing
the suspension of the visiting arrangements, violates article 24, paragraph
1, of the Covenant, read in conjunction with article 17. She submits that
this order leaves the child unprotected, in violation of article 24,
paragraph 1. Moreover, in the author's view, it constitutes arbitrary
interference with the minor's privacy inasmuch as she is compelled to live
with a father who, according to the substantial evidentiary material
described in the account of the facts set forth in the judgement, sexually
abused the child. She points out that jurisdiction to prescribe measures of
protection for the minor lies with the Family Court, which is not bound by
the acquittal, although that ruling undoubtedly brings unlawful pressure to
bear on the Family Court, since the Murcia Provincial Court is the authority
of higher instance.

OBSERVATIONS BY THE STATE PARTY ON ADMISSIBILITY

4.1 In its observations of 27 April 2006, the State party maintains that the
communication is inadmissible as manifestly unfounded and as an abuse of the
right of submission of communications as well as on the ground of failure to
exhaust domestic remedies.

4.2 The State party notes that the author's complaint concerns an issue of
evaluation of evidence, although the evidence was thoroughly analysed by the
court that rendered the judgement. The court in question, referring to the
evidence consisting of a video-recording of the minor's statements made by
the Family Court's technical team, held that "her statement lacks
evidentiary value because it failed to present the facts as a freely
recalled memory, since she was persistently asked leading questions, with
positive and negative reinforcement, including suggested answers to which
the minor conveniently assented in an attempt to please the adults and have
done with a subject in which she had no interest whatsoever. Moreover, the
various repetitions of the interview were bound to prove fatal since they
entailed the risk that the child would no longer be able to distinguish
between what actually happened and the information from others that she had
internalized and incorporated in her account". The State party points out
that every item of evidence presented during the proceedings was thoroughly
and separately evaluated by the Provincial Court, including the statements
by the plaintiff and the defendant, before the judgement of acquittal was
rendered. It notes that the Committee's role, as it has acknowledged on
numerous occasions, is not to substitute its evaluation of evidence for that
of national courts unless their evaluation is manifestly arbitrary or
ill-founded. The State party submits that it is clear from a reading of the
judgement of acquittal handed down by the Provincial Court that it is based
on a thorough analysis that can on no account be branded as arbitrary.

4.3 With regard to article 17 of the Covenant, the State party asserts that
it was a perfectly logical step for the Provincial Court to stipulate that
the judgement of acquittal should be communicated to the Family Court with a
view to terminating the measures concerning the visiting arrangements
adopted pending the judicial proceedings. It points out that the terms used
by the Provincial Court were distorted by the author, the Court having
stated: "A certified true copy of this decision shall be communicated to the
Family Court (...) for its cognizance and so that it may adopt appropriate
decisions, promptly and as a matter of urgency (article 158 of the Civil
Code), aimed at normalizing relations between the father and daughter,
taking such precautions as it deems fit." The State party maintains that,
according to aforementioned article 158, "measures to protect minors can be
adopted in any civil or criminal proceedings or in non-contentious
jurisdiction proceedings", notwithstanding which the court that rendered the
judgement merely communicated its decision to the Family Court so that the
latter could make an appropriate ruling.

4.4 The State party points out that, in any case, such measures as the
Family Court might have adopted pursuant to the acquittal of which it was
informed are not at issue here, since relevant domestic remedies pertaining
to the alleged violation of articles 17 and 24 of the Covenant have not been
exhausted.

OBSERVATIONS BY THE STATE PARTY ON THE MERITS

5. In its observations of 10 July 2006, the State party submits its
observations on the merits, reiterating the arguments set out in its
observations of 27 April 2006.

COMMENTS BY THE AUTHOR

6.1 In her comments of 16 October 2006, the author claims that the
Provincial Court's order to communicate the judgement of acquittal to the
Family Court with a view to the urgent resumption of relations between the
father and daughter had left her in a state of deep distress. She points out
that article 158 of the Civil Code does not require the Family Court to
adopt such a measure but that paragraph 4 of the article requires it to take
appropriate steps, on its own initiative, to remove the child from danger or
harm. The author adds that, although the Family Court did not act on the
request contained in the Provincial Court's judgement, she spent years in a
state of anxiety, fearing that at any time the father could demand to
exercise his right to visit the minor.

6.2 She insists that the existence of sexual abuse can be inferred from the
account of the proven facts set out in the judgement, facts that allegedly
were not taken into account by the Provisional Court when it handed down its
judgement of acquittal, leaving the minor unprotected.

6.3 She asserts that the invalidation of the evidence consisting of the
video-recording of the minor's statement is arbitrary and sanctions impunity
for pederasty.

ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE

CONSIDERATION OF ADMISSIBILITY

7.1 Before considering any allegations contained in a communication, the
Human Rights Committee must, in accordance with rule 93 of its rules of
procedure, decide whether or not the communication is admissible under the
Optional Protocol to the International Covenant on Civil and Political
Rights.

7.2 The Committee has ascertained that the same matter is not being examined
under another procedure of international investigation or settlement, in
accordance with article 5, paragraph 2 (a), of the Optional Protocol. 7.3
The Committee takes note of the State party's allegation that domestic
remedies have not been exhausted in the case of the complaint based on
articles 17 and 24 inasmuch as the issue of the invalidity of the measures
taken by the Family Court regarding the possible restoration of visiting
arrangements was not raised before a domestic court. The Committee notes,
however, that the author exhausted all available domestic remedies,
including an application for amparo before the Constitutional Court, on
grounds of violation of the minor's right to privacy.

7.4 As to the claim that the communication is inadmissible under article 17,
the Committee notes that the complaint is based on the Provincial Court's
decision, upheld in cassation by the Supreme Court, denying the validity of
the evidence submitted by the author. It is this alleged arbitrariness on
the part of the Provincial Court and the Supreme Court, which could
constitute a violation of article 14, paragraph 1, that forms the basis of
the author's claim of a violation of articles 17 and 24. In the Committee's
view, the complaint under these articles has been sufficiently substantiated
for the purposes of admissibility.

7.5 With regard to the State party's argument regarding abuse of the right
to submit communications, the Committee notes that the State party has
failed to substantiate its claim and that, furthermore, there are no grounds
to consider that such abuse occurred in the light of the circumstances of
the case.

CONSIDERATION OF THE MERITS

8.1 The Committee has considered the present communication in the light of
all the information made available by the parties, as provided in article 5,
paragraph 1, of the Optional Protocol.

8.2 The Committee takes note of the author's allegations to the effect that
a denial of justice occurred in the form of alleged arbitrariness in the
domestic courts' evaluation of the evidence adduced by the prosecution and,
specifically, the invalidation of an item of evidence, the video-recording
of the minor's statement, which by its very nature could not have been
submitted in any other form because of the minor's young age and the delay
in bringing the legal proceedings. It also takes note of the State party's
allegations that all the evidence, including the video-recording of the
minor, was thoroughly analysed by the trial court, which dismissed it on
well-reasoned grounds.

8.3 The Committee refers to its well-established jurisprudence, according to
which it is generally for domestic courts to evaluate facts and evidence,
unless it can be ascertained that such evaluation was manifestly arbitrary
or amounted to a denial of justice. [FN3] The Committee notes that the
Provincial Court thoroughly analysed each and every item of evidence adduced
by the prosecution, separately and coherently. The Provincial Court's
evaluation of the evidence was again thoroughly reviewed by the Supreme
Court, which concluded that it had been well-reasoned and adequate.
Specifically, with regard to the evidence that the author deemed to be
vital, namely the video-recording of the minor by the Family Court's
technical team, the Committee notes that that evidence was thoroughly
analysed by the Provincial Court, which concluded that it was inadequate on
account of the circumstances in which it was taken and the minor's young
age. The Committee considers that it is not in a position to rule on the
soundness of the arguments advanced by the Provincial Court to dismiss the
probative value of the evidence, in the light of the Court's detailed
reasoning and line of argument. Therefore, the Committee considers that
there is insufficient basis for the conclusion that the domestic courts
acted arbitrarily in evaluating the evidence.

8.4 Having failed to find a violation of article 14, paragraph 1, the
Committee considers that the author's complaints under articles 17 and 24
have no basis in law. The acquittal, by two courts, of the author's husband
does not constitute sufficient grounds for finding a violation of the rights
contained in articles 17 and 24. 9. In the light of the foregoing, the Human
Rights Committee, acting under article 5, paragraph 4, of the Optional
Protocol to the International Covenant on Civil and Political Rights, is of
the view that the facts before it do not disclose a violation of article 14,
paragraph 1, of the Covenant.

[Adopted in English, French and Spanish, the Spanish text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]

The texts of two individual opinions, one signed by Committee members Mr.
Rajsoomer Lallah, Ms. Christine Chanet and Mr. Prafullachandra Natwarlal
Bhagwati, and one signed by Ms. Ruth Wedgwood and Sir Nigel Rodley, are
appended to the present decision

Insofar as the author's complaint in relation to article 14, paragraph 1 of
the Covenant is concerned, it is in our view inadmissible on the following
grounds: － The Covenant does not provide a right to see another person
prosecuted. (See de Groot v. The Netherlands, Communication No. 578/1994
which follows the established jurisprudence of the Committee) － In
prosecutions, article 14.1, as indeed the other paragraphs of Article 14,
has for object the protection of the due process rights of the person
accused and not those of the prosecutor － The author admittedly had rights
as a parent to ensure the protection of her child and the Family Court was
best equipped to determine any relevant issues in this regard, as explained
by the Supreme Court

(Signed): Mr. Rajsoomer Lallah

(Signed): Ms. Christine Chanet

(Signed): Mr. Prafullachandra Natwarlal Bhagwati

[Done in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]

In its general practice, the Committee has deferred to the reasoned
decisions of national courts as to the evaluation of evidence presented at
trial. In the matter currently before the Committee, a very young child was
allegedly the victim of serious sexual abuse by one of her parents. A
videotaped statement by the child was excluded by the Spanish criminal
courts, because it consisted of leading questions and suggested answers,
repetitively put to the child, and the child was no longer able to testify
to the events in open court because of loss of memory. The Committee defers
to this decision, and I concur in the Committee's Views. But I would add a
cautionary note, in regard to the limits of our decision. Children have a
moral and legal right to protection against physical and sexual abuse. This
right to protection is grounded under articles 7, 9, 17, and 23 of the
Covenant. The evidentiary standards applicable to decisions on custody and
visitation rights may be quite different from a criminal prosecution. In the
instant case, after the acquittal of the accused parent on criminal charges,
the Provincial Court delivered a strong suggestion, if not a mandate, to the
family court, that visiting rights with the accused parent should be
restored, though the particular arrangements were to be determined by the
family court. The family court declined to follow the views of the
Provincial Court. In this directive, the Provincial Court apparently
overlooked the fact that the evidentiary standards applicable to a decision
on visiting rights are appropriately quite different from the nearly perfect
proof required for a criminal case. Thus, the applicant in this case, acting
on behalf of the daughter, had a basis to complain that the right to
protection enjoyed by every child should not be overlooked, even in the face
of a criminal acquittal.

(Signed): Ms. Ruth Wedgwood

(Signed): Sir Nigel Rodley

[Done in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]